Few can dispute the dysfunction of recent Congresses.  The 112th Congress proved the least productive in modern history as measured by laws passed.  The dramatic federal government funding standoff in the 113th Congress culminated in a 16-day shutdown that drove congressional approval to its lowest level ever.  Yet despite these failures, a close look at recent Congresses demonstrates the remarkable ability of the institution to adapt and address internal challenges.

In an article in the Utah Law Review, I show how House of Representative Speaker John Boehner’s strategic use of the Hastert Rule allowed him successfully to navigate a treacherous political path of managing his divergent caucus, preserving his leadership position, and passing key legislation even when a majority of his caucus did not support it. 

The rise of the Tea Party and the ideological divisions within the Republican Party created challenging conditions for Speaker Boehner.  To balance the competing factions in the House Republican caucus, Speaker Boehner selectively used a political and procedural tool known as the Hastert Rule.  It provides that the Speaker will not schedule a bill for a floor vote unless a  majority of the majority caucus favors the legislation. 

Undoubtedly, the use of the Hastert Rule strengthened the hand of Tea Party members to influence legislation.  At the same time, selectively ignoring the Hastert Rule allowed Speaker Boehner to relieve some of the political pressure that the Tea Party members exerted in an effort to address critical public policy concerns and to preserve the future electoral viability of the Republican party.  

Speaker Boehner allowed five bills to pass without a majority of the Republican caucus in 2013 and 2014, the most since 2008.  The list of bills that merited special treatment is instructive.  Bills to fund the federal government, raise the debt ceiling, and provide emergency funding to respond to a natural disaster passed with predominantly Democratic votes.  Clearly, the need to safeguard the economy from substantial harm and protect his political party from significant missteps that could diminish their electoral changes in the future motivated the Speaker to schedule these bills for floor votes despite the need to override the Hastert Rule.  Speaker Boehner also dispensed with the Hastert Rule to pass the Violence Against Women Act (“VAWA”) Reauthorization.  In doing so, he was responding to the substantial gender gap that Republicans have faced in elections since 1990.  Passing VAWA was Speaker Boehner’s attempt to respond to a political weakness of his party. 

Political polarization in Congress, and particularly in the Republican Party, has heightened congressional dysfunction.  Speaker Boehner’s strategic use of the Hastert Rule allowed him to maneuver through this difficult period.  Understanding these dynamics helps us understand Congress now and in the future.